Friday, April 25, 2014

Motion to Substitute

The Mississippi Supreme Court decided Burch v. Illinois Central Railroad located here.  This case illustrates why it is necessary to file a motion to substitute a party after one party dies.  Harold Burch worked for Illinois Central Railroad and died in 2006.  He was diagnosed with asbestosis and lung cancer.  In 2009, his widow filed a wrongful death suit against the defendant for exposure to those items.  The widow died  in 2011,  but the plaintiff’s attorneys did not file a motion to substitute within 90 days as required by Rule 25 of the Mississippi Rules of Civil Procedure.  The trial court dismissed the case without prejudice and the heirs re-filed a short time later.  The second case was dismissed based on the statute of limitations as the first case being filed did not toll the statute because it was dismissed for failure to prosecute.  The Mississippi Supreme Court affirmed the dismissal for this reason. 

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